Case Name: The Irvine Co., LLC v. Douglas Ross Constr., Inc.

Case No.: 112CV234522

Cross-Defendant Cell Crete Corporation objects to the appointment of a special master and moves to set aside Case Management Order No. 1. Defendant Douglas Ross Construction, Inc. and Plaintiff The Irvine Co., LLC, oppose. Cross-Defendant also requests that the Court take judicial notice of the First Amended Complaint for damages filed on March 27, 2013, Defendant’s Cross-Complaint filed on April 4, 2013, the Stipulation to the Appointment of Special Master and Case Management Order No. 1 filed on September 18, 2013, and Cross-Defendant’s Answer to Defendant’s Cross-Complaint. Defendant also request judicial notice of California Rules of Court (Revised January 1, 2014), rule 3.400; California Evidence Code Sections 450-460; and the Superior Court of California, County of Santa Clara On-Line Document List for The Irvine Company LLC v. Douglas Ross Construction, Inc., et al.

The court must take judicial notice of any public statutory law of California. (Evid. Code, § 451(a).) The court may take judicial notice of any records of any court of this state. (Ibid. § 452(d).) The court may also take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Ibid. § 452(h).) Although the existence of a document may be judicially noticed, the truth of statements contained in the documents and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, p. 113.) Therefore, the Court will take judicial notice of the existence, but not the contents, of the First Amended Complaint, the Cross-Complaint, the Cross-Defendant’s Answer, and the document list. The court will also take judicial notice of the Stipulation of the Appointment of Special Master and Case Management Order No. 1, pursuant to § 452(d). The Court will also take judicial notice of California Rules of Court, rule 3.400 and California Evidence Code Sections 450-460.

This action arises out of alleged construction defects in a 445-unit apartment project known as “The Sycamores,” which is located at 3500 Palmilla Drive, San Jose, CA  95134. Defendant, the developer of The Sycamores, hired Cross-Defendant. On March 27, 2013, Plaintiff filed their First Amended Complaint for damages. Defendant filed its cross-complaint naming eighteen subcontractors on April 4, 2013. Thereafter, Plaintiff and Defendant stipulated to (1) the appointment of a special master, (2) a stay in discovery, and (3) to be bound by the discovery timeline set forth by the special master. Case Management Order No. 1 was filed with the Court on September 18, 2013. Cross-Defendant answered the cross-complaint on December 23, 2013.

Cross-Defendant argues that it has a right to object to the appointment of the Special Master because it did not agree to be bound by the Stipulation signed by Plaintiff and Defendant. Cross-Defendant also asserts that because of the stay on discovery, it has been prevented from conducting meaningful discovery that could raise statute of limitation defenses, and thus that is a violation of its due process rights.

Defendant argues that the appointment of a special master is necessary because this is a complex case. In addition, Defendant contends that Cross-Defendant’s rights to discovery have not been denied because nothing in the Case Management Order precludes Cell-Crete from seeking and obtaining documentation and information. Plaintiff and Defendant have served extensive written discovery responses and deposited extensive job file documents. In addition, Cross-Defendant is entitled to request additional specific discovery through the special Master process, upon good cause shown.

Plaintiff argues that Cross-Defendant’s motion should be denied for four additional reasons: (1) Cross-Defendant did not bring this motion before the special master as required by the CMO; (2) Cross-Defendant did not file a motion to amend within thirty days of its first appearance or when it first receives the order as stated in the CMO; (3) Cross-Defendant has not been prejudiced by the CMO; and (4) Cross-Defendant has failed to demonstrate a violation of CCP § 638.

Courts have broad discretion to fashion suitable methods of practice to manage complex litigation, so long as the procedures adopted do not conflict with any statute, rule of law, or Judicial Council rule. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, p. 967.) That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with the pending litigation to ensure the orderly administration of justice. (Ibid.) A party may object to the appointment of any person as referee, on one or more of the following grounds: (1) a want of any qualifications prescribed by statute to render a person competent as a juror, (2) consanguinity or affinity to either party, (3) having a relationship with a party, (4) having served as a juror or been a witness to any trial between the same parties, (5) interest on the part of the referee in the proceedings, (6) having formed or expressed an unqualified opinion or belief as to the merits of the action, or (7) the existence of a state of mind in the potential referee evincing enmity against or bias toward either party. (Cal. Code Civ. Proc., § 641.)

Cross-Defendant does not make an objection on any of the above grounds. Cross-Defendant’s main objection is that the Stipulation was signed without Cross-Defendant’s consent, and thus Cross-Defendant should not be bound to any Orders by the Special Master. The Court finds that contention is without merit. In this case, Cross-Defendant had the opportunity to object to the CMO within thirty calendar days after the date of that party’s first appearance in this litigation. (Plain. Opp. Decl. Moss Ex. A, p. 6:17-20.) Cross-Defendant admits that it answered Defendant’s cross-complaint on December 23, 2013, and that date has been judicially noted, as mentioned above. The objection was brought on February 24, 2014, which was sixty-three days after Cross-Defendant appeared. Because Cross-Defendant had the opportunity to object, but failed to do so in a timely manner, Cross-Defendant’s waived his objection.

Therefore, the motion to set aside case management order No. 1 is DENIED.